Summary: Mr X complained the Council did not properly consider his application for additional disability related expenditure in deciding his contribution to his care costs. He also complained the Council did not make reasonable adjustments for him during the assessment process. The Council was not at fault for refusing Mr X’s application. However, it was at fault for not clearly explaining its reasons. The Council has already apologised for this and provided its reasons in its complaint response to Mr X which was an appropriate remedy. It will now remind staff of the need to provide adequate explanations in decision letters.

The complaint

1. Mr X complained about the Council’s actions and its decision in relation to his disability related expenditure request. He said the Council:
• did not properly consider his application as it did not approve it; and
• did not offer to make reasonable adjustments for him during the assessments it carried out.
2. Mr X said this has caused him distress and he is unable to afford the additional expenses to meet his care needs. He wants the Council to recognise its error, re-consider his application and make service improvements to prevent a recurrence of fault.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke with Mr X and considered information he provided.
7. I considered information the Council provided.
8. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments received before making the final decision.

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What I found

Charging for adult social care services

9. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care and Support Statutory Guidance.
10. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Disability related expenditure

11. Councils can take disability related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

The Council’s policy on disability related expenditure

12. The Council’s policy states to qualify for disability related expenditure, the person must be in receipt of:
• Disability Living Allowance;
• Personal Independence Payment; or
• Attendance Allowance.

The care and support needs assessment should also identify disabilities or medical conditions which show the person’s need for disability related expenditure.

13. The Council assesses the person’s disability related expenditure as part of the financial assessment.
14. People who are in receipt of the above benefits or have a severe disability premium paid to them, will receive a disregard of either 10% of the value of those benefits or the cost of the additional expenditure if it is greater.
15. If a person believes they incur additional disability related expenditure, they can request a review. They must be in receipt of the above benefits and the expenditure must be related to the care needs identified in the care and support needs assessment.
16. The Council has a list of expenditure it will not usually consider to be disability related. The list includes social and leisure activities.

Background

17. Mr X has a neurological condition and has a mental health diagnosis. Mr X lives with his family including his mother. His mother supports him with activities of daily living. Mr X does not access the community much due to his mental health. He attends a gym which is near his house and has access to a car. Mr X does not work. He is in receipt of benefits such as Personal Independence Payment (PIP) which supports him with living costs.

What happened

18. In January 2022, Mr X asked the Council to assess him for support to meet his care needs. He said his mother was going to work more hours and so would not be available as much to support him. He wanted the Council to give him direct payments to help fund:
• a personal assistant who would support him with accessing the community; and
• a respite service he could attend where he could make friends.

The Council agreed to complete a social care needs assessment with Mr X.

19. In February 2022, the Council completed a social care needs assessment with Mr X. It considered Mr X’s care and support needs and that support to help him with accessing the community and making friends, would be beneficial to his mental health. Therefore, the Council approved Mr X’s request for a personal assistant and respite service.

Following this, the Council completed a financial assessment with Mr X over the telephone to establish how the provision of a personal assistant and respite service would be funded. The Council considered Mr X’s benefits and any savings he had and any additional costs Mr X might need to make due to his health. It applied a standard 10% rate of disability related expenditure. The assessment concluded Mr X would need to pay a contribution towards his care costs of approximately £59 per week.

20. Mr X later decided not to go ahead with the personal assistant and respite service as he was not sure if he could afford to pay the weekly contribution.
21. In April 2022, Mr X submitted an additional disability related expenditure request to the Council. In his application form, Mr X said he required additional disability related expenditure for:
• access to leisure clubs;
• personal training sessions at the gym; and
• petrol for driving further out for walks.

Mr X said this would help his mental health.

22. The Council considered Mr X’s request for additional disability related expenditure. The Council then wrote to Mr X and said it was unable to approve his request as it did not consider personal training sessions, access to leisure centres and travel expenditure for walking as disability related expenditure. The Council told Mr X if he was unhappy with its decision, he could complain to the Council.
23. Mr X later complained to the Council as he was unhappy with the Council’s decision. The Council responded and did not uphold Mr X's complaint but it did not explain why it had refused his request for additional disability related expenditure.
24. Mr X remained unhappy and escalated his complaint further. The Council responded to Mr X’s complaint at the next stage of its complaints procedure and said:
• it recognised Mr X had additional expenditure related to his care and support needs as identified in the care and support needs assessment. However, the Council was in the process of arranging provision to meet those needs which Mr X later declined. It would not be able to fund provision to meet Mr X’s needs and then disregard other expenditure that was meeting the same needs. The Council said it would essentially mean doubling funding for Mr X’s provision; and
• it accepted additional expenditure for personal training sessions and access to leisure clubs would support Mr X to maintain a routine and support his mental health. However, it did not accept this expenditure was solely the result of his disability. It said such expenditure was a common individual or household expense.
25. As a result, the Council did not change its decision to refuse the request for additional disability related expenditure. However, it accepted that its letter to Mr X refusing his request, and its initial response to his complaint, did not adequately explain how the Council reached its decision to refuse his application. It apologised for this.
26. Mr X remained unhappy and complained to us. In his complaint, Mr X said he struggled with communication. He was unhappy the Council had completed the financial assessment over the telephone and that he did not have an advocate to help him complete his request for the additional disability related expenditure.
27. As part of my enquiries, I asked the Council whether it had considered any requests from Mr X for reasonable adjustments in relation to the assessments it had completed with him. The Council said Mr X did not request any reasonable adjustments and there was no indication Mr X would find it difficult to be involved in the assessment process. It said Mr X demonstrated his ability to advocate for himself throughout the process. However, if Mr X wished for a review of his social care needs assessment and financial assessment with an advocate present, it could arrange this.

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Findings

Mr X’s disability related expenditure request

28. It is not for the Ombudsman to establish what Mr X’s care and support needs are and whether the Council should apply disability related expenditure to his case. That is the Council’s role. Our role is to determine whether there was any administrative fault in the way the Council reached its decision.
29. The Council properly considered Mr X’s care and support needs during its assessment it completed in February 2022. It identified Mr X had care and support needs which could be met with a personal assistant and respite service. It was Mr X’s decision to decline these services. The Council was not at fault.
30. Mr X applied for additional disability related expenditure in relation to leisure activities and travelling to and from them. The Council told Mr X it would not approve his request as it generally does not consider such expenditure as disability related. It failed to clearly explain why Mr X’s request would not be accepted as additional disability related expenditure. This was fault.
31. Mr X complained to the Council about its decision. In its initial response to Mr X’s complaint, the Council again failed to explain how it had reached its view. The Council considered his complaint at the next stage of its complaints procedure and set out how it reached its view that Mr X did not qualify for additional disability related expenditure. It clearly explained to Mr X its reasons which were in line with the Council’s policy. There was no fault in the way the Council reached its view that Mr X was not entitled to additional disability related expenditure. It was at fault for failing to explain its reasoning to Mr X sooner. It has already apologised to Mr X for this which was an appropriate remedy.

Mr X’s reasonable adjustments

32. Mr X said the Council did not offer him reasonable adjustments during the financial assessment and the application for the additional disability related expenditure. The Council has no record of Mr X requesting any reasonable adjustments and was satisfied Mr X was able to actively participate in the assessment. The Council was not at fault. It is open to Mr X to request a review of his social care needs assessment and financial assessment with an advocate present if he wishes to.

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Agreed actions

33. Within one month of the final decision, the Council has agreed to remind staff to clearly explain in its decision letters its reasons for refusing disability related expenditure requests.

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Final decision

34. I have now completed my investigation. The Council was at fault. It has already remedied the injustice caused which was appropriate. It has also agreed to our recommendation to prevent a recurrence of fault.

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Investigator's decision on behalf of the Ombudsman